Roeding v. Perasso
Synopsis
Appeal from a decree in favor of plaintiff, and from an order refusing to modify said decree, in the Fifteenth District Court in and for the City and County of San Francisco. Dwinelle, J.'
Action to abate a dam erected on the land of a lower riparian proprietor, by which, it was alleged, the land of the plaintiff was overflowed. The defendant, besides denying the allegations of the complaint; pleaded that the cause of action was barred by the provisions of Sections 319, 338, and 343 of the Code of Civil Procedure. There was no finding upon the issue raised by this allegation.
The Court: The findings in this case do not respond to the issues presented by the pleadings. The judgment and order are therefore reversed, and the cause remanded for a new trial. And by consent of parties in open Court, it is ordered that the remittitur issue forthwith.
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